Insurance and Reinsurance

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1 October 2013

2 Insurance and Reinsurance Copyright 2013 Brigard & Urrutia Legal Information The information and materials on this Newsletter are not intended to be, nor should they be construed as constituting, a legal opinion, legal recommendation or legal advice of any kind. This Newsletter, access thereto and use thereof, and the information contained on the Newsletter, do not mean or create a lawyer-client relationship or any other type of relationship. Brigard & Urrutia and the Newsletter do not constitute the rendering of any kind of legal services. You may not and should not use the Newsletter, the Contents or the information contained as a basis or justification for drawing up legal strategies, structuring business or deciding on legal action. Under no circumstances should you consider that this Newsletter replaces a consultation with a lawyer. If you require legal advice, Brigard & Urrutia recommends that you consult a professional lawyer immediately who will study your case and give a diagnosis. Please bear in mind that the information given on this Newsletter is not exhaustive.

3 Table of Contents 1. COURT DECISIONS 4 2. ARBITRATION 8 3. LEGISLATION OTHER NEWS 14 3

4 COURT DECISIONS 4

5 The Colombian Supreme Court reiterated that the sale of the insured good produces automatic termination of the insurance policy. The Colombian Supreme Court overturned the judgment to an insurance company (called into guarantee) regarding the pecuniary damage caused by Mr. X in a traffic accident to a motorbike victim. The vehicle driven by Mr. X was property of a Company Y that had recently acquired the automobile from Mr. Z (the Company Y s legal representative). The vehicle involved in the traffic accident was insured through car insurance, taken out by the previous owner of the vehicle, Mr. Z. The insurer was called into guarantee early in the judicial process, as it was believed that the respective insurance policy was still in force. However, the Court found Mr. X and Company Y to be jointly liable, excluding the insurance company from paying any compensation. The Court held that the sale of the vehicle (the insured good) involved in the traffic accident produced the automatic termination of the insurance policy according to Colombian law. Corte Suprema, Sala de Casación Penal. Ref. Exp N M.P. Luis Guillermo Salazar Otero. January 30th The Colombian Constitutional Court reiterated the rules applicable to declaring the risk when taking out an insurance policy. The Colombian Constitutional Court did not protect the fundamental rights to human dignity, health, subsistence and the right to petition, allegedly violated by an insurance company and a financial institution. The plaintiff, a 52 year old woman, had joined a debtor s group life insurance policy (offered by the insurance company) taken out by the financial institution in order to insure the risks derived from the death and illness of its debtors. Before joining, the plaintiff had been having symptoms of a disease that generated discomfort when sleeping, diagnosed as narcolepsy - cataplexy, which did not allow the plaintiff to continue working as a teacher, and therefore, requesting compensation to the insurance company. The insurer refused to recognize and pay compensation on the grounds that when filling the insurance policy application, the plaintiff was reluctant to declare a neurological treatment she had been receiving eleven years ago. The Constitutional Court decided not to protect the fundamental rights of the plaintiff for the following main reasons: (i) the plaintiff had other legal means to seek the protection of her rights to obtain compensation and (ii) the plaintiff did not demonstrate an irreparable damage in order for the constitutional jurisdiction to apply. 5

6 Despite not having protected the rights of the plaintiff, the Constitutional Court reiterated the rules (established by the Colombian Supreme Court) applicable to declaring the risk when taking out an insurance policy. This case law has determined that once the insured has declared the symptoms and ailments that afflict it, the insurer shall, within the limits of its possibilities, make inquiries designed to determine the current state of risk, or alternatively, refuse to execute the insurance contract. However, the Constitutional Court held that even though the above obligation must be observed by the insurance company, this does not mean that the insuredbeneficiary may seek compensation by virtue of their bad faith. Corte Constitucional, Ref. Expediente T Sentencia T-268 de M.P. Jorge Iván Palacio Palacio. May 8th Payment of compensation in the judicial process has to be made to the party that called the insurance company into guarantee. The Colombian Supreme Court decided on the case of a liability process that resulted from the death of a pedestrian near a construction site. The judicial process was initiated against the construction company and its legal representative, among others. The Court examined the liability of the legal representative of the construction company, as well as the quantification of the damage occurred. The Court also analyzed the call into guarantee of an insurance company, since the construction site was insured by an insurance policy that covered the risks derived from construction and assembly. The Court held the construction company and its legal representative liable for the death of the deceased pedestrian. Since the construction company (the policyholder) called the insurer to the judicial process, the Court held that payment of compensation must be made to the policyholder. The plaintiff, who was also the daughter of the deceased pedestrian, requested the Court direct payment of compensation by the called insurer. However, the Supreme Court held that the reimbursement or payment must be made by the insurer to the caller (in this case, the construction company), but never per saltum to the beneficiary (in this case, the daughter of the deceased pedestrian). According to the Court, the legal relations involved were differentiable. The Court held that the daughter of the deceased was authorized by Article 1133 of the Colombian Commercial Code to request direct compensation within the judicial process, a legal institution that differs from calling an insurance company within the process. However, according to the Court, the plaintiff did not exercise this right, making it impossible for it to acquire compensation from the insurance company within the judicial process. Corte Suprema, Sala de Casación Civil. Ref. Exp. EXP M.P. Ruth Marina Díaz Rueda. August 8th

7 7

8 ARBITRATION 8

9 Non-enforcement of warranties by the insurer constitutes acceptance of the risk and exclusion of the insured s breach. An arbitration tribunal, convened before the Arbitration and Conciliation Center of the Bogota Chamber of Commerce, held accountable an insurance company to pay the appropriate compensation for a claim made in November 2010 by one of its policyholders. The insured had taken out an insurance policy that covered the risk of theft of its business stored goods and money. Said insurance policy contained a warranty provision stating that the insured company must set additional secured bars in the building where the stolen objects and goods were. The insured company never made the corresponding changes to the building and therefore was in breach of the policy s provision. However, throughout the execution of the insurance contract, even though the breach was of its knowledge, the insurer never mentioned the insured about such breach. After the claim, the insurance company refused to recognize and pay compensation on other grounds different than the breach of contract, and therefore did not exercise its right to terminate the insurance contract in accordance with Article 1061 of the Colombian Commercial Code. The insurer waited until the response to the complaint (within the arbitration proceedings) to exercise said power, which was, long after the breach had configured. The tribunal held that the insurance company s negligence constituted the acceptance of the risk and exclusion of the insured to comply with the warranties agreed. Additionally, the tribunal held that the insurer s behavior was an infringement of the principle of good faith, since the insurer intended (through unfair delays, until the arbitration proceedings) to terminate the insurance contract unilaterally. According to the tribunal s analysis, a right may not be exercised if the holder of said right has not enforced it in a timely manner, making the counterparty legitimately believe that said right will not be exercised. In other words, the termination of the insurance contract had to be exercised by the insurance company once it had knowledge of the insured s warranty breach. Tractochevrolet Ltda. v. Seguros Comerciales Bolívar S.A. Tribunal de Arbitramento Cámara de Comercio de Bogotá. March 4th

10 LEGISLATION 10

11 Insurance market liberalization: a reality in Colombia. In accordance with Article 101 of Law No of 2009, on July 15, 2013, provisions regarding the liberalization of the Colombian insurance market entered into force. These provisions established the following rules and guidelines: Any person (natural or legal entity) resident in Colombia, may acquire any insurance product outside of Colombian jurisdiction except (i) insurance products related to social security, (ii) compulsory insurance products, (iii) insurance products in which the policyholder, insured or beneficiary must previously demonstrate the acquisition of a compulsory or social security insurance product, and (iv) insurance products in which the policyholder, insured or beneficiary is a State entity. Foreign insurance companies may offer and provide within Colombian territory (or to its residents) insurance products associated with (i) international shipping, (ii) commercial aviation and (iii) with space launch and transportation (including satellites), that may cover the risks related to the goods being transported (as well ensuring goods in international transit), the vehicle transporting the goods, and any liability that may arise from them. These companies must be registered in the RAIMAT, established by the Colombian Superintendence of Finance by means of Circular Externa No. 019 of June 27, Foreign insurance companies may establish branches in Colombian territory, which (i) will have the same rights and obligations like Colombian insurers, (ii) must meet the same admission requirements like Colombian insurers, and (iii) will be subject to the supervision of the Colombian Superintendence of Finance. Law No of Rules applicable to insurance intermediaries that work in the field of occupational hazards (workers compensation). The Colombian Ministry of Labor established the rules applicable to insurance intermediaries that work in the field of insurance products related to occupational hazards (workers compensation). According to the Ministry s decree, the intermediation of such insurance products is legally reserved to insurance brokers, agencies and insurance agents that demonstrate their level of professionalism, operational infrastructure and human infrastructure. Said decree ordered the creation of the Registro Único de Intermediarios del Sistema de Riesgos Laborales (Single Registry of Intermediaries Pertaining to the Labor Risk System), a registry in which all intermediaries wishing to pursue such activity, must comply with professional, human and operational infrastructure requirements established by law. 11

12 As a result, occupational risk managers and employers may not hire intermediary companies that are not in said registry. The decree established a year deadline for insurance brokers, agencies and agents that wish to pursue this intermediary activity in order to accredit the requirements established above. Ministerio del Trabajo. Decreto 1637 de July 31st Pre-formulated standard contracts may contain arbitration option clause. The Colombian Ministry of Justice and Law established that the arbitration agreement may be included as an option clause in pre-formulated standard contracts. According to the Ministry s decree, the party in whose favor is granted the option to accept arbitration may accept or reject it, making it effective with the filing of the complaint before the Arbitration Center selected to resolve the disputes arising from the contract. According to said decree, acceptance of the party in whose favor is granted the option to accept arbitration shall be expressed freely, spontaneously and in no case be presumed or imposed by the sole execution of the contract. Additionally, the decree stated that the lack of acceptance at the time of execution of the contract will make the arbitration option null and void. Finally, the decree established that unless expressly stated otherwise, the term of validity of the option shall be of one (1) year. The decree s content is relevant to the insurance contract as according to Colombian law, insurance agreements fall in the category of pre-formulated standard contracts. Ministerio de Justicia y del Derecho. Artículo 80. Decreto 1829 de August 27th

13

14 OTHER NEWS 14

15 New consumer protection developments in Colombia. The Colombian Superintendence of Finance (SFC) reminded the public that it has no authority over foreign insurers and their intermediaries concluding insurance contracts with Colombian residents by virtue of insurance market liberalization measures.the following are the foreign insurers exempted from supervision according to the SFC: I. Foreign insurers registered in the RAIMAT (Registry Intended For Foreign Insurers That Want To Offer Insurance Associated With International Shipping, International Commercial Aviation And Space Launch And Transportation (including satellites)) or RAISAX (Registry of Foreign Insurance Entities and Foreign Insurance Intermediaries of Agricultural Insurance). II. Foreign insurers that conclude insurance contracts with Colombian residents in a cross border basis. The SFC has also reminded the public about consumer rights and their relation to the recent insurance market liberalization. According to the SFC, Colombian residents concluding insurance contracts abroad will not be considered financial consumers in Colombia. Additionally, the SFC established that Colombian residents buying insurance products in Colombia from registered foreign insurance companies registered in the RAIMAT and RAISAX, will not be considered financial consumers by law. According to the SFC, in both of these cases, consumer issues will be solved by the corresponding authority abroad. Superintendencia Financiera de Colombia. ABC de Liberalización. July 25th Carlos Umaña Trujillo Socio Brigard & Urrutia Lucas Fajardo Asociado Brigard & Urrutia More information: 15

16 Calle 70 A No 4 41 Tel: (+57-1) Insurance and Reinsurance Team For further information, please contact: Carlos Umaña: Lucas Fajardo:

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